Building Act 1993

section 73B

1 Prescribed event

For section 73C(2), a prescribed event is one of the following events or circumstances:

(a) the person required to provide the prescribed certification (the relevant person) has:

(ii) become so severely incapacitated that he or she is unable to complete the prescribed certification;

(b) the relevant person (excluding an owner-builder) has become bankrupt or insolvent;

(c) if the relevant person is a building practitioner – the person has ceased to be registered;

(d) if the relevant person is required to provide the prescribed certification to a building practitioner – the person is withholding the certification because of the bankruptcy or insolvency of the building practitioner;

(e) the building contract relating to the building work has been terminated;

(f) the prescribed certification has been destroyed or cannot be found.

2 Entitlement to apply for exemption certificate

An owner of land on which building work has been carried out is entitled to apply for an exemption certificate only if:

(a) the building work has actually started to be carried out on the land; and

(b) there is a current building permit for the building work or the building permit for the building work has lapsed solely because of the occurrence of a prescribed event; and

(c) the owner has taken all reasonable steps to obtain the prescribed certification within a reasonable time after the occurrence of the prescribed event.

3 Application for exemption certificate

(c) specify the prescribed certification for which the exemption certificate is required; and

(d) specify the prescribed event that has occurred and the steps the applicant has taken to obtain the certification; and

(2) No fee is payable for an application for an exemption certificate.

4 Consideration of application

(1) In considering an application for an exemption certificate, the Director:

(a) may require the applicant to provide additional information, which may include reports by suitably qualified persons about the status of the building work; and

(b) is not required to obtain information from anyone other than the applicant; and

(c) if the building permit for the building work has lapsed solely because of the occurrence of a prescribed event – must notify the applicant of the period of extension of the permit, which may be by reference to a specified date or occurrence (for example, the granting of an occupancy permit).

(2) The Director may also require the applicant to have any of the following carried out by suitably qualified persons:

(b) anything that is reasonably necessary to inspect the building work, including demolishing, opening, cutting into and testing the building work;

(3) The applicant is responsible for all expenses incurred in obtaining information and complying with a requirement under subclause (2).

5 Determination of application

(1) In deciding whether to grant or refuse to grant an exemption certificate, the Director must take into account each of the following that is relevant to the building work to which the application relates:

(a) whether the owner has taken all reasonable steps to obtain the prescribed certification and any other information required by the Director;

(b) the opinions of relevantly qualified persons about the status and quality of the building work;

(c) the mandatory inspection stage the building work had reached when the prescribed event occurred;

(d) the stage the building work had reached between mandatory inspection stages;

(e) the certificates or other documents provided to the Director in relation to the stage the building work has reached;

(f) the status of the building work discovered after inspections have been carried out as required by the Director;

(g) the status of the building work after remedial work has been carried out as required by the Director;

(h) if the person who failed to give the prescribed certification is, or was, a building practitioner – the past performance of the building practitioner;

(i) whether the owner has complied with all the requirements of the Director;

(2) The Director may grant an exemption certificate to the applicant only if the Director is satisfied:

(b) the information provided by the applicant, including any certificates and documents relating to inspections and remedial work required by the Director under clause 4(2), indicates that the work to which the prescribed certification would have related has been carried out materially in accordance with the building permit.

(4) If the Director decides to refuse to grant an exemption certificate, the Director must give the applicant a notice stating:

(c) that the person may appeal to the Appeals Board as specified in clause 6.

6 Appeal against refusal to grant exemption certificate

(1) An applicant who is given a notice of a decision under clause 5(4) may appeal to the Appeals Board against the decision.